In Ross v. Davis, the Ninth Circuit yesterday affirmed the denial of habeas corpus relief to a condemned prisoner who was convicted of three murders committed 40 years ago and whose death sentence the Supreme Court affirmed in 1995 (People v. Champion (1995) 9 Cal.4th 879).

The Supreme Court had also denied three state habeas petitions, including one by a 5-2 opinion. (In re Ross (1995) 10 Cal.4th 184; see also here and here.) The divided opinion overturned a superior court judge’s findings that had found prejudicial defense counsel’s incompetence during the trial’s penalty phase. In his dissent, Justice Stanley Mosk wrote, “Various assertions by their apologists among the majority notwithstanding, trial counsel cannot easily be absolved.” (Ross at p. 215.)

On the ineffective-assistance-of-counsel claim, the Ninth Circuit held, “Though we agree with the district court that counsel’s failure to perform was deficient, given the entirety of the evidence before the jury, Ross’s disruptive conduct in front of the jury and the sure-to-be-admitted rebuttal and impeachment evidence that would follow introduction of the mitigation evidence, the California Supreme Court reasonably concluded that Ross did not show a reasonable probability that the result would have been different but for counsel’s unprofessional errors.”

The federal appeals panel also rejected the prisoner’s challenge to an aiding-and-abetting jury instruction. According to the court, the prisoner “Ross was not charged with or proven to be the actual killer of” any of the three victims.

Because of federal statutory habeas law, the prisoner had a steep uphill climb in seeking relief. Quoting the U.S. Supreme Court, the Ninth Circuit explained that he faced “ ‘a “difficult to meet,” and “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” ’ ” Indeed, the panel said, “Certainly we would not find it unreasonable had the California Supreme Court determined Ross was prejudiced by counsel’s deficient performance.”

The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.


“From the bench, an ‘impotent silence’ ”